EPA Publishes Very Late NPRM for 2014 Methyl Bromide CUE

Last Friday the Environmental Protection Agency (EPA) published a notice of proposed rulemaking (NPRM) in the Federal Register (79 FR 13006-13017) for the 2014 and 2015 critical use exemptions (CUE) for the use of Methyl Bromide.

Critical Use Exemptions

In the past these CUE rules have been done on an annual basis, but the EPA has been getting later and later in introducing the NPRM and publishing the final rule for this recurring action. The 2013 NPRM, for instance was published in December 2012 with the subsequent final rule being published in July 2013. Friday’s publication of the NPRM for the 2014 use of methyl bromide means that the final rule won’t be published until almost all of the approved uses of methyl bromide have been completed for the year. Including the 2015 CUE in this NPRM means that for the first time in years, producers and users of methyl bromide will have their legal authorization to produce and use the material before they actually do so.

Last year, EPA included in the public docket for the final rule a copy of the letter that it sent to users and producers of methyl bromide in December of 2012 notifying them that while the rulemaking process was underway for the 2013 CUE that EPA would take no regulatory action against users and producers that were listed in the NPRM for the use or production of the listed amounts of methyl bromide. I am relatively certain that a similar letter was sent for this year’s CUE, though it is not yet in the public record. With the 2015 CUE being included in this NPRM, perhaps the EPA will not be forced to take such extra-legal actions for the 2015 growing season.

The table below lists the approved producers/importers of methyl bromide and the amounts (in pounds) that they will be authorized to produce/import during 2014 and 2015 along with the number’s from last year’s rule.

	2013 CUE	2014 CUE	2015 CUE
Great Lakes Chemical	765,466	602,130	513,054
Albemarle Corp	314,778	247,609	210,981
ICL-IP America	173,952	136,835	116,590
TriCal Inc	5,146	4,260	3,361
Total	1,259,610	979,635	844,256

Methyl Bromide Phase Out

It is obvious that while the phase out of methyl bromide continues it will continue to be used and produced in this country for the foreseeable future. Thus (here it comes), the DHS basis for not including this toxic inhalation hazard chemical in the DHS list of chemicals of interest (COI) is still questionable. DHS should take steps to add this chemical to the list of chemicals that could require facilities to report under the Top Screen provisions of the CFATS regulations.

Public Comments

The EPA is soliciting public comments on this proposed rule. Comments may be submitted via the Federal eRulemaking Portal (www.Regulations.gov; Docket # EPA-HQ-OAR-2014-0065). Comments should be submitted by April 21^st, 2014.

EPA Publishes 2016 Methyl Bromide Critical Use Notice

Today the Environmental Protection Agency (EPA) published a notice in the Federal Register (78 FR 32646-32650) requesting the critical use information from manufacturers, distributors and users of methyl bromide for 2016. This annual requirement is part of the EPA’s ‘phase-out’ of the use of methyl bromide as a fumigant in the agricultural sector under the Montreal Protocol on Substances that Deplete the Ozone Layer.

According to the notice the US recently submitted it recommendations for 2015 critical use exemptions and it “included only three uses (strawberries, fresh dates and dry cured ham)”. This is unusual since just last year the EPA and the Department of Agriculture approved the use of methyl bromide for fumigating imported shipments of cotton seed for cattle feed. That use is not discussed in this notice.

Substitutes

One of the reasons that the EPA has recommended only those three areas, arguably the largest current uses, for the use of methyl bromide is that they have determined that there are substitutes available for other uses. These substitutes include:

• Sulfuryl Flouride – Dried fruit and nuts/flour mills, rice mills and pet food; and

• 1,3-Dichloropropene – Cucurbits, Eggplant, Pepper and Tomato/Orchard Replant/Ornamentals/Nurseries/Golf Courses;

Neither of these substitutes is currently listed as a DHS chemical of interest (COI) for the CFATS program. The manufacturers of these pesticides almost certainly use COI, but this will probably not result in new manufacturing or distribution, just increases in volume.

Applicants can still apply for use of methyl bromide for the above applications, but they must show economic and/or efficacy data that shows that methyl bromide is justified in that use over the substitutes. It will be interesting to see how many such nominations are received or approved.

Methyl Bromide and CFATS

As a toxic inhalation hazard (TIH) chemical, methyl bromide was initially on the proposed DHS list of COI. As part of the rule making process, however, it was removed from the list because the phase out of its use would make it unnecessary. Here it is almost five years later and the use of methyl bromide is still on-going and will continue in at least some limited form for the foreseeable future.

DHS has had on-going conversations with the chemical industry and other interested parties about possible modifications to Appendix A of the CFATS regulations. It seems that these discussions have been sidelined by ISCD efforts to resolve other programmatic problems. If and when such efforts resume, the issue of methyl bromide needs to be readdressed.

NOTE: Last year’s notice for the 2015 critical use submissions was posted on May 18^th; almost two weeks earlier than this post. This program keeps getting further and further behind on all of its administrative actions. This is part of the reason that the EPA keeps having to resort to extralegal actions to authorize legitimate uses of methyl bromide every year.